Geoffrey Moyse: How UNDRIP is fuelling the ‘land back’ movement in B.C.

A pedestrian walks past graffiti on a residential plan change notice stating "Land Back," in Toronto in 2022. Photo by Peter J Thompson/National Post

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Many Canadians are familiar with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), due to media coverage of both the content of the declaration, legislation passed by Ottawa and Victoria, along with court cases declaring it positive Canadian law. What many may not understand is that UNDRIP has been the “holy grail” of the activist Aboriginal movement in Canada, and particularly in British Columbia, for many years.

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Once only considered a non legally binding UN document, UNDRIP rose to prominence when the Truth and Reconciliation Commission called on all levels of government to “fully adopt and implement (it) as the framework for reconciliation.”

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Never mind that Canada had already baked Indigenous rights into the Constitution Act, 1982, with the additions of sections 25 and 35. Those rights have been defined over subsequent years not by Canadians or Canadian governments, but by the Supreme Court of Canada.

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A primary example arose in 1997, when the court used Sec. 35 — which recognizes and affirms the “existing Aboriginal and treaty rights of the Aboriginal peoples of Canada” — to justify the legal concept of “Aboriginal title.”

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We have recently witnessed in the Cowichan decision involving private lands in Richmond, B.C., where Aboriginal title was found by a B.C. court to be a “superior” interest in land to fee simple land. The vehement response to the Cowichan decision by private landowners demonstrates clearly how well that judicial invention is now working out in furthering “reconciliation.”

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UNDRIP, of course, is not Sec. 35. It is a far more challenging set of legal assumptions, and arguably far broader in scope and reach than even the concepts that the Supreme Court has defined to be constitutional law under Sec. 35.

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In fact, UNDRIP goes far beyond Sec. 35 in what it demands sovereign states accept as being the “rights” of Indigenous peoples, and those expansive definitions have become one of the driving forces behind the modern “land back” movement, particularly in British Columbia.

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It is a concept that the present B.C. government’s adoption of UNDRIP has brought to the forefront of provincial political discourse, largely due to Premier David Eby’s obvious interest in forging agreements to convert vast areas of Crown lands into Aboriginal title lands.

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What the adoption of UNDRIP has led to in British Columbia are two highly controversial and constitutionally questionable assumptions about the rights of Indigenous peoples.

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First, following Article 26 of UNDRIP, which deals with the rights of Indigenous peoples to their traditional territories, is the supposed conclusion that any Aboriginal community that claims a territory — no matter how large or doubtful the claim — has ownership rights over those lands and all the natural resources on them.